Court records show expert witness not in hospital when judge granted continuance

Steve Korris Dec. 2, 2008, 8:00am

Brad Allen

JASPER – In April, Houston attorney Brad Allen asked Jefferson County District Judge Donald Floyd to delay the start of a trial because his expert witness lay in a hospital bed with spinal injuries after falling from a horse.

But court records in Jasper County show that only nine days after Allen talked to the judge, his expert witness, Mark West, was testifying at a trial in Jasper.

According to an April 30 transcript, West told Jasper County jurors he was wearing a body brace because he fell from a horse on April 12 and cracked a vertebra.

The transcript differs from what Allen told Floyd in an April 21 motion to continue a Hurricane Rita insurance trial in Jefferson County.

As the Record reported on Nov. 20, Allen was defending GuideOne Lloyds Insurance against a coverage claim of Westgate Church of Christ in Beaumont and told Floyd that West fractured nine vertebrae and his pelvis.

Allen told Floyd that West required surgery and remained in a hospital.

Floyd signed an order May 2, continuing the trial to August.

On May 23 the church's lawyer, Steve Mostyn, moved for sanctions against Allen. He wrote that West had been able to testify in May, and attached a medical record showing the hospital discharged West on April 17.

Mostyn may have learned of West's appearance in Jasper County, though his motion did not mention it.

As trial approached, Floyd reset it again for November. In October, without giving a reason, he assigned the trial to District Judge Bob Wortham.

Allen asked the Ninth District appeals court in Beaumont to return the trial to Floyd, but the Ninth District denied his appeal on Nov. 5.

Allen petitioned the Texas Supreme Court to review the Fifth District decision, and the Supreme Court denied review on Nov. 7.

The church and the insurer immediately settled, and Wortham called off the trial.

Meanwhile, Floyd retained the motion for sanctions. He has not set a hearing on it.

The Jasper case

In Jasper, West testified for Missouri fireplace manufacturer Country Flame against a claim that its product started a blaze that destroyed a home.

Edward Fisher, of Provost and Umphrey in Beaumont, filed the suit last year for homeowners Jerry Burks and Pamela Burks.

They also sued fireplace installer Greg Ramsey, but they nonsuited him before trial.

Country Flame moved for summary judgment in January, arguing that the owners hired an unqualified installer with no Country Flame training.

District Judge Jerome Owens denied summary judgment and took the case to trial.

At the close of trial on May 11, jurors pinned 65 percent of the blame on Ramsey, 30 percent on the owners, and five percent on Country Flame.

Judgment against Country Flame amounted to a few thousand dollars.
Fisher moved in August for a new trial, arguing that Country Flame presented no evidence of negligence on the part of his clients.

For Country Flame, Owen Ellington of Houston answered that Jenna Burks told Ramsey to install the fireplace insert in a wooden structure rather than a fireproof one.

Judge Owens denied a new trial in September.

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